Enforcement

• Author: Ashley S. Lipson
• Pages: 798-823

17-796

Without enforcement,

demands are nothing but

empty, hollow threats.

Chapter 17

Enforcement

§17.10 The Basics

§17.11 Examination of Responses

§17.12 Using 37-Caliber Ordinance

§17.13 Other Enforcement Weaponry

§17.14 Enforcement in State Courts

§17.20 Follow-Up

§17.30 Appeals

§17.40 The Forms That You Need

Form 17.1 Motion to Exclude Undisclosed Witness

Form 17.2 Motion for Continuance (Due to Non-Disclosure)

Form 17.3 Skeletal Motion for Summary Judgment

Form 17.4 Motion for Costs and Attorney Fees

17-797 enFOrcement §17.12

1 Scott v. Greenville Housing Authority, 579 S.E.2d 151, 353 S.C. 639 (S.C. App. 2003) delivered this eloquent statement: “When discovery

rights are trampled, prejudice must be presumed.”

2 Tolliver v. Federal Republic of Nigeria, 265 F.Supp.2d 873 (W.D.Mich. 2003). The failure to timely raise issues of non-compliance under

discovery sanctions rules could constitute a waiver of such rights.

Mikeron, Inc. v. Exxon Co., U.S.A., 264 F.Supp.2d 268 (D.Md. 2003). A plaintiff who, in nearly two years, had never moved to compel

depositions or responses to interrogatories or document requests could not do so for the first time at summary judgment.

Once a motion has been filed, the enemy may not necessarily be able to avoid its consequences, even if he or she files a late response to

your discovery requests. Being first on the draw does, therefore, have its advantages. See Greenbriar Homes, Inc. v. Builders Insurance, 615

S.E.2d 191, 273 Ga.App. 344 (2005) holding that once a motion for failure to make discovery has been filed, the opposing party may not

preclude the imposition of sanctions by making a belated discovery response. Despite the late submission, the trial court was, nevertheless,

required to hold a hearing to determine whether the delinquent party’s failure to respond was willful, rather than negligent.

3 See §17.14.

3.1 Smith v. Murphy, 994 N.E.2d 617 (Ill.App., 2013). The decision of whether or not to impose sanctions for a party’s failure to comply with

the rules or court orders on discovery lies within the sound discretion of the trial court, and trial court’s imposition of sanctions will not be

reversed absent an abuse of discretion.

For additional discussion concerning the court’s discretion in discovery matters, see supra, §2.11.

4 All but a few states have provisions that are substantially similar to Rule 37. Those that differ are: California, New York, Connecticut (see

Connecticut Superior Court Rule §231), Maryland (see Maryland’s Rule 37), Missouri, New Hampshire, Pennsylvania (see Pennsylvania

Rule 4019), Texas (see Texas Rule 215).

The subject matter of this chapter is important

enough to be considered throughout the entire treatise.

In fact, all of the weapons chapters (5 through 10) and

the material relating to subpoenas (Chapter 11) have

their own separate sections dealing with enforcement.

This particular chapter is directed at the more generic

matters relating to enforcement, as opposed to those that

are weapon-specific.

For lay persons, the stress of discovery normally

begins as soon as they are requested to provide personal

information to an enemy whom they are suing or who is

suing them. Stress among lawyers is, however, a different

matter. For us, submitting and responding to discovery

requests is merely a normal part of our basic professional

lives. Initially, everything is normal and cordial. Things

don’t seem to get personal until you tell the opposing

attorney that his or her client’s responses are not going

to suffice. From there, things always seem to escalate.

Therefore, restraint, politeness and limited accommoda-

tion can be very important at this sensitive juncture.

§17.10 The Basics

Don’t ever launch a discovery weapon unless you

are prepared to enforce it. It’s difficult to overstate the

importance of this rule. Often, ignored or unenforced dis-

covery can be worse than no discovery at all. Permitting

the opposition to ignore your discovery requests with

impunity is unforgivable.1 The court has every right to

assume that your failure to voice a timely objection or

file a proper motion means that you have exercised your

discovery rights and are satisfied with the results. And

that, of course, can place you in a defensive posture with

respect to summary disposition, regardless of whether

you are a plaintiff or defendant. Therefore, if the enemy

fails to provide a complete response, you must act and

act quickly.2 Every jurisdiction’s set of discovery rules

will provide for enforcement. As is the case with most

states, the federal rules form the model.3 And, regard-

less of which court you are in (state or federal), the rules

granting to the court broad discretion for discovery mat-

ters and applicable sanctions are similar.3.1

§17.11 Examination of Responses

Expect resistance. If your attack is effective and

you are doing your job properly, you should expect the

enemy to make a counter-move or offer some form of

resistance. You should never expect your opposition to

respond totally and fully comply without some form of

coercion. A good enemy will always test your metal.

Too often, I have witnessed defeatist attitudes, particu-

larly among young associates, to the effect of “Why bother

to spend time with interrogatories or depositions? They

(i.e., the opposing party) are just going to object or give us

a bunch of bull.” The proper attitude is one of acceptance;

i.e., you should accept the fact that the discovery campaign

only begins with the request. Then you should delight in

enemy resistance. After all, if the enemy merely surrenders,

you really can’t drag him before the judge, seek sanctions,

or smear him into a bloody pulp. So, if the enemy resists,

rejoice and go directly to the next Section.

§17.12 Using 37-Caliber Ordinance

Enforcement is mine, sayeth Rule 37. That particular

rule has provided a ubiquitous model for the enforcement

of discovery, in general.4 According to the United States